persons, consenting,-of sound mind,-and of the age of twenty-one years ;-or of the age of fourteen in males and twelve in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage is voidable by the ecclesiastical law, after the death of either of the parties, nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists; of consanguinity; and of affinity, or corporal imbecility, subsisting previous to the marriage.

II. I AM next to consider the manner in which marriages may be dissolved; and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial; the one a vinculo matrimonii, the other merely a mensa et thoro, The total divorce, a vinculo matrimonii, must be for some of the canonical causes of impediment before mentioned; and those, existing before the marriage, as is always the case in consanguinity; not supervenient, or arising afterwards, as may be the case in affinity or corporal imbecility (12). For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful ab initio; and the parties are therefore separated pro salute animarum: for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage as is thus entirely dissolved, are bastards d.

DIVORCE a mensa et thoro is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving

d Co. Litt. 235.

(12) Corporal imbecility may arise after the marriage, which will not then vacate the marriage, because there was no fraud in the original contract; and one of the ends of marriage, viz. the legitimate procreation of children, may have been answered: but no kindred by affinity can happen subsequently to the marriage; for as affinity always depends upon the previous marriage of one of the parties so related, if a husband and wife are not so related at the time of the marriage, they never can become so afterwards.

it; but for some supervenient cause, it becomes improper or impossible for the parties to live together: as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever, that arises after the union is made. And this is said to be built on the divine revealed law; though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another. The civil law, which is partly of pagan original, allows many causes of absolute divorce; and some of them pretty severe ones: (as if a wife goes to the theatre or the public games, without the knowledge and consent of the husband,) but among them adultery is the principal, and with reason named the first 8. But with us in England adultery is only a cause of separation from bed and board: for which the best reason that can be given is, that if divorces were allowed to depend upon a matter within the power of either of the parties, they would probably be extremely frequent ; as was the case when divorces were allowed for canonical disabilities, on the mere confession of the parties, which is now prohibited by the canonsk (13). However, divorces, a vin

e Matt. xix, 9.
f Nov. 117.

g Cod. 5. 17. 8.

h Moor. 683.

i 2 Mod. 314.

k Can. 1603, c. 105.

(13) A husband cannot obtain a divorce in the ecclesiastical courts for the adultery of his wife if she recriminates, and can prove that he also has been unfaithful to the marriage vow; this seems to be founded on the following rational precept of the civil law, judex adulterii ante oculos habere debet et inquirere, an maritus pudicè vivens, mulieri quoque bonos mores colendi autor fuerit. Per iniquum enim videtur esse, ut pudiritiam vir ab uxore exigat, quam ipse non exhibeat. Ff. 48, 5. 13.

culo matrimonii, for adultery, have of late years been frequently granted by act of parliament (14).

In case of divorce a mensa et thoro, the law allows alimony to the wife which is that allowance, which is made to a woman for her support out of the husband's estate: being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovers; for which, if he refuses payment, there is (besides the ordinary process of excommunication) a writ at common law de estoveris habendis, in order to recover it. It is generally proportioned to the [442] rank and quality of the parties. But in case of elopement, and living with an adulterer, the law allows

her no alimony m.

1 1 Lev. 6.

m Cowel. tit. Alimony.

(14) To prevent divorces a vinculo matrimonii from being obtained in parliament by fraud and collusion, the two houses not only examine witnesses to be convinced of the adultery of the wife, but they require also that the husband shall have obtained a sentence of divorce in the spiritual courts, and a verdict with damages in a court of law from some one who has had criminal intercourse with the wife.

This is not a standing order of the house of lords, but it is adopted as a rule of caution, and it may be dispensed with, where the cir cumstances are such that the adultery of the wife can be proved by satisfactory evidence, and at the same time it is impossible for the husband to obtain a verdict in an action at law.

It was dispensed with in the case of a naval officer, whose wife had been brought to bed of one child, in his absence upon duty abroad; and upon his return was far advanced in her pregnancy with a second, and where he could not discover the father. So in another case, where a married woman had gone to France, was divorced there, and had married a Frenchman.

It would also be dispensed with, if the adulterer should die before the husband could obtain a verdict.

III. HAVING thus shewn how marriages may be made, or dissolved, I come now, lastly, to speak of the legal consequences of such making, or dissolution.

By marriage, the husband and wife are one person in law", that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing; and is therefore called in our law-french a feme-covert, foemina viro co-operta; is said to be covert-baron, or under the protection and influence of her husband, her baron, or lord; and her condition during her marriage is called her coverture (15). Upon this principle, of an union of person in husband and wife, depend almost all the legal rights, duties, and disabilities, that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant any thing to his wife, or enter into covenant with her, for the grant would be to suppose her separate existence: and to covenant with her, would be only to covenant with himself (16) and therefore it is also generally true, that all compacts made between husband and wife, when single, are voided by the intermarriage P. A woman indeed may be attorney for her husband; for that implies no separation

n Co. Litt. 112.
o Ibid.

p Cro. Car. 551.
q F. N. B. 27.

(15) Whatever may be the origin of feme-covert, it is not perhaps unworthy of observation, that it nearly corresponds in its significations to the Latin word nupta; for that is derived a nubendo, i. e. tegendo, because the modesty of the bride, it is said, was so much consulted by the Romans upon that delicate occasion, that she was led to her husband's home covered with a veil.

(16) But the husband may grant to the wife by the intervention of trustees; Harg. Co. Litt. 30; and he may surrender a copyhold to her use. 4 Co. 29.

from, but is rather a representation of, her lord. And a husband may also bequeath any thing to his wife by will; for that cannot take effect till the coverture is determined by his death г. The husband is bound to provide his wife with necessaries by law, as much as himself: and if she contracts debts for them, he is obliged to pay them; but, for any thing besides necessaries, he is not chargeable (17). Also

if a wife elopes, and lives with another man, the [443] husband is not chargeable even for necessaries"; at

least if the person who furnishes them is sufficiently apprized of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt; for he has adopted her and her circumstances together* (18). If the wife be injured in her person or her property, she can bring no action for redress without her husband's concur rence, and in his name, as well as her own y: neither can she

r Co. Litt. 112.

s Salk. 118.

t 1 Sid. 120.

w 1 Lev. 5.

x 3 Mod. 186.


Sa lk. 119. 1 Roll, Abr. 347.

u Stra. 647.

(17) What are necessaries must be ascertained by a jury from the

rank and circumstances of the husband.

Lord Kenyon has held at nisi prius, that if a husband gives notice to a particular tradesman not to deal with his wife unless she bring ready money, that tradesman cannot afterwards maintain an action against the husband even for necessaries.

(18) But though the husband has had a great fortune with his wife, if she dies before him, he is not liable to pay her debts contracted before marriage, either in law or equity, unless there is some part of her personal property which he did not reduce into his possession before her death, which he must afterwards recover as her administrator; and to the extent of the value of that property, he will be liable to pay his wife's debts, dum sola, which remained undischarged during the cover. ture. 1 P. Wms. 468.

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